FOIA Update: Supreme Court Update

January 1, 1984

FOIA Update Vol. V, No. 2 1984

Supreme Court Update

Addressing a crucial investigatory record issue that arose within the unusual confines of Exemption 5, the Supreme Court unanimously gave the government a significant law enforcement victory on March 20.

In United States v. Weber Aircraft Corp., 104 S. Ct. 1488 (1984), the Court considered a disclosure request for particularly sensitive portions of an Air Force accident investigation report. The report was prepared as part of a standard "safety investigation" undertaken by the Air Force after the crash of one of its aircraft. It contained detailed statements from Air Force personnel who witnessed or participated in the events surrounding the incident. Pursuant to standard Air Force policy, and in order to "encourage witnesses to speak fully and frankly," all such witnesses "receive an assurance that their statements will not be used for any purpose other than accident prevention."

Requester Weber Aircraft Corp. wanted complete access to the report, including all confidential witness statements, to defend itself in a civil damages lawsuit brought by an Air Force pilot injured in the accident. It had been unable to obtain the information during routine document discovery within that civil action because of a longstanding civil discovery privilege that protects all such statements given in aircraft accident investigations. Consequently, Weber Aircraft sought to circumvent this established discovery barrier through use of the FOIA.

Although the district court judge considering Weber Aircraft's FOIA claim found the confidential witness statements properly withheld pursuant to Exemption 5, the U.S. Court of Appeals for the Ninth Circuit ruled in Weber Aircraft's favor. In a distinct departure from established case law, it refused to regard the traditional aircraft accident investigation privilege as incorporated into Exemption 5, simply because that privilege was not specifically mentioned anywhere within Exemption 5's legislative history. The Ninth Circuit held that this harsh interpretation was required by the Supreme Court's decision in Federal Open Market Committee v. Merrill, 443 U.S. 340 (1979). See FOIA Update, Jan. 1983, at 5.

The Supreme Court, however, reversed the Ninth Circuit by a 9-0 vote, holding that such confidential witness statements are protectable under the FOIA as well as in the civil discovery context. Writing for the Court, Justice John Paul Stevens declared that "[t]he plain language of the [FOIA] itself . . . is sufficient to resolve the question presented." He pointed to the fact that the aircraft accident investigation privilege is "well recognized in the case law as precluding routine disclosure of the statements" and said that, on the basis of that alone, "the statements are covered by Exemption 5." The Court's previous decision in Merrill, he concluded, did not compel any different approach.

Further, on a point of wide FOIA applicability, Justice Stevens dwelled on the fact that Weber Aircraft was seeking to use the FOIA to circumvent and in effect nullify traditional civil discovery restrictions. He declared that such an approach, if permitted in this case, "would create an anomaly in that the FOIA could be used to supplement civil discovery." Justice Stevens therefore also based the Court's decision upon this additional ground of legislative intent: "We do not think that Congress could have intended that the weighty policies underlying discovery privileges could be so easily circumvented."

Finally, it should not be overlooked that the Weber Aircraft opinion contains a potentially significant discussion that goes to the very heart of the investigatory information collection process. In footnote 23 of the Court's opinion, Justice Stevens observed that the nondisclosure result achieved in this case "would not be inconsistent with the fundamental goals of the FOIA since it does not necessarily reduce the amount of information available to the public." This is so for such information as confidential witness statements obtained in an investigation, he noted, "because the Government would not be able to obtain the information but for its assurance of confidentiality." Thus, if FOIA protection were not accorded such information, Justice Stevens reasoned, "the information would not be obtained by the Government in the first place."

In Provenzano, the U.S. Court of Appeals for the Third Circuit ruled that the Privacy Act cannot serve as an Exemption 3 statute, while the Seventh Circuit Court of Appeals in Shapiro held squarely that it can. The D.C. Circuit and Fifth Circuit Courts of Appeals have likewise split on the issue, which has thus far focused on the Privacy Act's broad criminal law enforcement exemption, 5 U.S.C. § 552a(j)(2). (See the "Guest Article" on pages 8-9 for a detailed discussion of this issue.)

The Court should hear oral argument on this controversial issue sometime in late fall and a decision can be expected during the early part of 1985. The Provenzano and Shapiro cases have been consolidated for purposes of the Court's consideration, but the issue apparently will be decided under the former case name.

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Also pending before the Supreme Court for decision during its 1984-1985 Term is Sims v. CIA, 709 F.2d 95 (D.C. Cir. 1983), cert. granted, 104 S. Ct. 1438 (1984), which involves the issue of the proper definition of the term "intelligence source" under the CIA's major Exemption 3 statute. See FOIA Update, Fall 1983, at 6. The CIA has argued to the Supreme Court that the narrow definition of that term articulated by the D.C. Circuit in Sims would "seriously impair" the agency's intelligence gathering functions.

On June 11, the Supreme Court additionally granted the plaintiff's cross-petition for certiorari in Sims, so the government will be defending a favorable portion of the lower court decision as well. The entire case should be scheduled for oral argument soon after the Court returns from its summer recess in October. As with Provenzano, a decision can be expected sometime in early 1985.